I thought they couldn't ban guns in common use?

I thought that the courts have said that you cannot ban a gun that is in common use. So that leads me to ask how many AR15's are in use in the US and wouldn't there be enough in use that they would fall under this?

Plenty of cities and states are attempting to ban the AR15 and it's magazines, so I'm wondering why no one is saying anything about common use.
.

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Donut Destroyer

February 10, 2013, 02:47 PM

I have never heard of any rulings that list "common use" as a guideline. Do you know where that came from?

Sam Cade

February 10, 2013, 02:50 PM

I have never heard of any rulings that list "common use" as a guideline. Do you know where that came from?

DC v. Heller

(f) None of the Courtís precedents forecloses the Courtís interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47Ė54.

Justin

February 10, 2013, 03:00 PM

Plenty of cities and states are attempting to ban the AR15 and it's magazines, so I'm wondering why no one is saying anything about common use.

It's estimated that there's somewhere north of 4 million AR15s in the US, and the number goes even higher if you talk about numbers of military-style semi-auto rifles.

They most assuredly are in common use, especially of you look at the numbers of people who are active participants in self-defense training classes and competition.

The thing is, that the only way to prove that they're in common usage is to try the whole thing in court, which will mean that the NRA-ILA and Second Amendment Foundation will need lots of money.

JayBird

February 10, 2013, 03:17 PM

DC v. Heller

It actually predates heller by about 70 years. It is originally from US vs Miller, which was a challenge to NFA. Of course, there was no defense present when the case was heard in front of SCOTUS because Miller had died.

Heller was merely referencing Miller.

The Court also looked to historical sources to explain the meaning of "militia" as set down by the authors of the Constitution:

"The significance attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."
http://en.wikipedia.org/wiki/United_States_v._Miller

It's estimated that there's somewhere north of 4 million AR15s in the US, and the number goes even higher if you talk about numbers of military-style semi-auto rifles.

They most assuredly are in common use, especially of you look at the numbers of people who are active participants in self-defense training classes and competition.

The thing is, that the only way to prove that they're in common usage is to try the whole thing in court, which will mean that the NRA-ILA and Second Amendment Foundation will need lots of money.
Agree. If you simply look at detachable magazine fed semi auto rifles, there are quite alot of them out there, and should most definitely be considered 'in common use at the time' Heck, how many ruger 10/22's are there? How many ruger mini's. etc etc etc 'Military style' is a meaningless term. it should be detachable magazine fed semi auto rifle for any 'common use' argument...at a minimum.

That doesn't mean a state or the fed cant ban them(many have). The case has to be heard by SCOTUS. And they would need to be consistent. Just because a case should go our way doesnt mean it always will.

jamesbeat

February 10, 2013, 03:43 PM

And I thought that they couldn't infringe our right to keep and bear arms, but they've done that quite a few times.

There are plenty of unconstitutional laws on the books (I know, because I live in NY :() but they'll continue to break the law until someone stops them in court.

Kinda ironic, huh.

rdhood

February 10, 2013, 09:38 PM

It's why the NY ban is ripe for a challenge.

Jim K

February 10, 2013, 09:44 PM

What is "common use"? A thousand guns? A million? A hundred million? Or is it based on the percentage of the general public who own that item? (Ten percent? Fifty percent?)

Regardless, the idea is to seize and destroy as many guns as possible, imprison as many gun owners as possible, ban further manufacture and sale of guns, THEN let the courts do what they want. It would be like a 1946 German court declaring that the Holocaust was wrong. What has been done can't be undone.

Jim

DeepSouth

February 10, 2013, 09:45 PM

One Supreme Court justice from none of that mattering.
Sad.

JohnKSa

February 10, 2013, 09:54 PM

The Heller decision stated, more or less, that it was not constitutional to ban an entire class of firearms in common use.

You have to keep in mind what Heller was about. It was about the DC ban on handguns. Therefore, in the context of the Heller decision, that meant that it was not constitutional to ban handguns. Handguns being an entire class of firearms in common use.

That is a HUGE class of firearms. If one breaks modern firearms into two classes, they would likely draw the dividing line between handguns and long guns.

So, Heller, in context, basically says that it would be unconstitutional to ban all handguns or to ban all long guns--maybe one could reasonably take it further and say that a ban on all shotguns, or a ban on all rifles or a ban on all handguns would be illegal.

The idea that one can take Heller and interpret it to mean that all subclasses and subsets of subclasses of firearms in common use are constitutionally protected would likely be a hard sell in the courts. In other words, while Heller would invalidate a ban on all handguns, it is, in my opinion, quite unlikely that it would invalidate a ban on a subset of a particular subclass of firearms (e.g. Class: Handgun, Subclass: Semi-automatic, Subset of Subclass: Accepting a magazine holding more than X rounds; or Class: Rifle, Subclass: Semi-automatic, Subset of Subclass: Accepting detachable magazines).

This battle will be fought and won or lost in the legislatures and at the ballot boxes.

M2 Carbine

February 10, 2013, 10:03 PM

I thought they couldn't ban guns in common use?
"they" can and do pretty much anything they want. The federal government ceased to be "Our government" quite a while back and is now "The government" and there's not a lot we can do about it.

joeschmoe

February 10, 2013, 10:05 PM

^^I disagree with JohnK.

The court said much more than that. In Heller they declared the 2nd was a fundamental right requiring strict scrutiny. Miller had previously ruled that weapons that had valid Militia purpose could not be banned, and in McDonald they ruled that these rights were incorporated under the 14th as applying to the states under federal protection.

So, IMO, most of NYs new law will be struck down for several reasons, including the fact that they made no attempt to comply with the recent rullings on the 2nd.

joeschmoe

February 10, 2013, 10:11 PM

"they" can and do pretty much anything they want. The federal government ceased to be "Our government" quite a while back and is now "The government" and there's not a lot we can do about it.
False. The people who claim the system is broken are the same who don't seem to understand how it works. Learn how your government works. Get involved.
The governments job is to protect our 2nd Amendment rights. They are, and will keep doing that. The same document that empowers our government also restricts it.

The only faliure here is NY'ers keep voting for the same politicians who take their rights. We can fix that too.

JohnKSa

February 10, 2013, 10:12 PM

In Heller they declared the 2nd was a fundamental right requiring strict scrutiny.What part of Heller states that every commonly used subset of subclass of class of firearms is constitutionally protected?

Even if one were so lucky as to find a court that interpreted the ruling so generously, it still wouldn't prohibit registration. The Heller opinion, specifically does not address any issues regarding registration.Miller had previously ruled that weapons that had valid Militia purpose could not be banned...If anyone gave Miller any weight in the courts, do you think that the Hughes amendment could have lasted for 26 years?McDonald they ruled that these rights were incorporated under the 14th as applying to the states under federal protection.That merely extends the protection afforded by Heller to state laws. If Heller doesn't apply, neither does McDonald.

flyingfeathers

February 10, 2013, 10:23 PM

Only problem with today, it may not be just today, is that we are often limited by the quality of people running for office. Why are we saddled with a mountain of debt? We didn't bother to march, like others did, on Washington and put fear into the politicians. We keeping hearing lies every election and forget the lies we were told the last election. Ron Paul tried speaking the truth and the media shoved him away, unless they lost ratings because of it. When we value our rights more than the Super Bowl we might actually finally group together and get something done.

somerandomguy

February 10, 2013, 10:27 PM

I'd also like to point out the First-sale doctrine:

http://en.wikipedia.org/wiki/First-sale_doctrine

That also applies to guns. You must be allowed to sell or transfer your own guns that you obtained legally according to the law.

joeschmoe

February 10, 2013, 10:33 PM

What part of Heller states that every commonly used subset of subclass of class of firearms is constitutionally protected?
US v Miller stated (dicta) that weapons with valid Militia purpose cannot be banned.

Heller/McDonald require Strict Scrutiny test;

To determine if a statute passes the test, a court considers whether the government has a compelling interest in creating the law, whether the statute is "narrowly tailored" to meet the government's objectives, and whether there are less restrictive means of accomplishing the same thing.
Even if one were so lucky as to find a court that interpreted the ruling so generously, it still wouldn't prohibit registration. The Heller opinion, specifically does not address any issues regarding registration.I didn't mention registration. I disagree with your point that only the legislatures/voters can change this. I think it's unlikely to survive court challenge for the reasons I've stated. Then they can throw the bums out of office for good measure.
If anyone gave Miller any weight in the courts, do you think that the Hughes amendment could have lasted for 26 years?I don't follow you here. Hughes amendment is an extention of the Miller decision; that machine guns are not valid Militia weapons (easy to say when the defendant is dead, and the Heller court relied on Miller, so it does have wieght)That merely extends the protection afforded by Heller to state laws. If Heller doesn't apply, neither does McDonald.Correct. If Heller does apply, then McDonald applies it to the states and federal rulings are used for interpretation rather than NY's loose protections. It's a very high standard.

chipcom

February 10, 2013, 10:34 PM

False. The people who claim the system is broken are the same who don't seem to understand how it works. Learn how your government works. Get involved.
The governments job is to protect our 2nd Amendment rights. They are, and will keep doing that. The same document that empowers our government also restricts it.

The only faliure here is NY'ers keep voting for the same politicians who take their rights. We can fix that too.

I worked in the system for years...it's broken. As far as the system cares, the Constitution and your rights are just obstacles to cast aside. The Constitution is dead, has been for a long time.

JohnKSa

February 10, 2013, 10:43 PM

I'd also like to point out the First-sale doctrine:

http://en.wikipedia.org/wiki/First-sale_doctrine

That also applies to guns. You must be allowed to sell or transfer your own guns that you obtained legally according to the law. I have no idea how you came up with this idea. It has absolutely nothing to do with the topic at hand. Whoever told you it did was either yanking your chain or seriously misinformed.Heller/McDonald require Strict Scrutiny test;

To determine if a statute passes the test, a court considers whether the government has a compelling interest in creating the law, whether the statute is "narrowly tailored" to meet the government's objectives, and whether there are less restrictive means of accomplishing the same thing.I read all of Heller. It defintely protects the right to own a general class of firearms that is in common use--handguns in the particular context of the case. There is nothing in Heller that states or even implies that banning subclasses of general classes, or subsets of those subclasses would be constitutionally problematic.

Furthermore, nothing in your reply addresses my specific question. Find and quote anything in Heller that states, or even loosely implies that every commonly used subset of subclass of class of firearms is constitutionally protected.I disagree with your point that only the legislatures/voters can change this.That's not what I said. What I said was that we can't rely on the courts to bail us out. If we lose in the legislatures, we've lost, period. Eventually, if they go too far with the laws, we might get some of the laws overturned, or at least parts of the laws overturned, but Heller doesn't offer nearly the protection that many people seem to think it does.I don't follow you here. Hughes amendment is an extention of the Miller decision; that machine guns are not valid Malitia weapons...How could any person in their right mind argue the idea that machine guns have no valid militia purpose. They are, of all weapons, the most likely to be defined as having no value/purpose OTHER than to a militia or military. The point is that the actual wording of Miller has been ignored for so long that it's essentially meaningless.

flyingfeathers

February 10, 2013, 10:43 PM

Broken alright. I have abandoned both parties. There is a fragment of hope with the Republicans but they have failed too often and today seem impotent. I wonder if by serving in government for decades makes a person detached from reality. The frightening thing is the speed that this administration wants to make such drastic changes.

USAF_Vet

February 11, 2013, 12:26 AM

Government: "In order for us to determine whether the detachable magazine fed semi-auto rifles are in common use, we must register them to determine the number in the hands of citizens."

somerandomguy

February 11, 2013, 12:35 AM

I have no idea how you came up with this idea. It has absolutely nothing to do with the topic at hand. Whoever told you it did was either yanking your chain or seriously misinformed.I read all of Heller. It defintely protects the right to own a general class of firearms that is in common use--handguns in the particular context of the case. There is nothing in Heller that states or even implies that banning subclasses of general classes, or subsets of those subclasses would be constitutionally problematic.

Furthermore, nothing in your reply addresses my specific question. Find and quote anything in Heller that states, or even loosely implies that every commonly used subset of subclass of class of firearms is constitutionally protected.That's not what I said. What I said was that we can't rely on the courts to bail us out. If we lose in the legislatures, we've lost, period. Eventually, if they go too far with the laws, we might get some of the laws overturned, or at least parts of the laws overturned, but Heller doesn't offer nearly the protection that many people seem to think it does.How could any person in their right mind argue the idea that machine guns have no valid militia purpose. They are, of all weapons, the most likely to be defined as having no value/purpose OTHER than to a militia or military. The point is that the actual wording of Miller has been ignored for so long that it's essentially meaningless.
It's right there at the top of the page:

The first-sale doctrine plays an important role in copyright and trademark law by limiting certain rights of a copyright or trademark owner. The doctrine enables the distribution chain of copyrighted products, library lending, gifting, video rentals and secondary markets for copyrighted works (for example, enabling individuals to sell their legally purchased books or CDs to others). In trademark law, this same doctrine enables reselling of trademarked products after the trademark holder put the products on the market. The doctrine is also referred to as the "right of first sale," "first sale rule," or "exhaustion rule."

As guns are patented AKA trademarked, and you have paid for them, you MUST be allowed to sell them, or transfer them to your kids. I don't think the government has a legal ground to stand on unless they get rid of consumer protection laws (which is a really scary thought). Basically if you have paid for a product, it's yours and you can do with it whatever you want (to some extent).

HorseSoldier

February 11, 2013, 12:53 AM

What is "common use"? A thousand guns? A million? A hundred million? Or is it based on the percentage of the general public who own that item? (Ten percent? Fifty percent?)

The test in Miller was not about numbers, it was about being in common military use at the time. Sawed off double barrel shotguns were not in common military use, ergo not protected by the 2nd Amendment.

An interesting concept by extension is that today, short barrel shotguns for breaching are fairly common in military use. The M4 -- legally a SBR for civilian use -- is ubiquitous. Even without getting into the military relevance of fully automatic weapons or the relatively common use of suppressors in the .mil, the common use argument would seem to support the idea that present barrel length restrictions for SBRs and SBS's violates the present decisions on the books by the SCOTUS. (One could probably hold that, by extension of the military use test, bans of standard military capacity magazines is also unlawful as well . . .)

michaelbsc

February 11, 2013, 01:12 AM

This battle will be fought and won or lost in the legislatures and at the ballot boxes.

Even more important than this I believe, the battle will be won or lost at the dinner tables of America. Because there is where the conversations are held that shape the decisions which determine which box is checked at the ballot box.

To that end, our community involvement is just as, if not more, important than political lobbying if we survive this round.

When I've said this in the past I've been ill received.

joeschmoe

February 11, 2013, 03:21 AM

I read all of Heller. It defintely protects the right to own a general class of firearms that is in common use--handguns in the particular context of the case. There is nothing in Heller that states or even implies that banning subclasses of general classes, or subsets of those subclasses would be constitutionally problematic.

Furthermore, nothing in your reply addresses my specific question. Find and quote anything in Heller that states, or even loosely implies that every commonly used subset of subclass of class of firearms is constitutionally protected.
I don't know where you got those terms. They were not in question in Heller. Heller does not answer all questions. It does declare that the 2nd is a fundamental right. That's the important part.
That's not what I said. What I said was that we can't rely on the courts to bail us out. If we lose in the legislatures, we've lost, period.
Heller doesn't offer nearly the protection that many people seem to think it does.
Heller doesn't offer any protection. The 2nd amendment does. Heller is just one interpretation of the second that setteled some long standing questions. It does not answer them all, but it's a hell of a start. Landmark ruling on the 2nd and fundamental rights in general.
How could any person in their right mind argue the idea that machine guns have no valid militia purpose. They are, of all weapons, the most likely to be defined as having no value/purpose OTHER than to a militia or military. Well it was easy since Miller was dead and no one spoke for the defense. The point is that the actual wording of Miller has been ignored for so long that it's essentially meaningless.

Miller is not meaningless. I don't know why you think so. It was quoted in Heller. Miller's ruling (as bizarre as it was) did allow for banning MG's, which the Hughes act eventually finished off. There is nothing in Miller that prohibits that.

denton

February 11, 2013, 12:28 PM

Heller and McDonald affirmed that the right to keep and bear arms is a fundamental, protected right, and that that protection applies to the states as well.

That puts the burden of proof on the state, to show that the regulation they propose serves some legitimate purpose. So the question, "Why do you need 30 bullets (sic) to kill a deer?" is a wrong question. The applicable question is, "What is there about an 11 round magazine that makes it regulatable, when a 10 round magazine is not?" Unless the state can show some great transformation that happens with that 11th round, it cannot constitutionally ban magazines that hold more than 10 rounds. I don't think they can meet that burden. New York's 7 round maximum should be easy pickin's for Gura and company.

Heller and McDonald, per Miller, cover firearms that are commonly held for lawful purposes. Handguns are a subset of that, as are AR15s. If you follow Scalia's reasoning, it is clear (at least to me) that a ban on any type of covered firearm is unconstitutional. You can't ban bolt actions, you can't ban Mausers, you can't ban semi-autos, and you can't ban rimfires because they are all types of firearms commonly held for lawful purposes.

If there is a right to possess and carry an arm, then there is a right to buy and sell it as well. The right to possess and carry would mean nothing if commerce in arms were banned. Hence, any action that unreasonably burdens buying and selling firearms is suspect. Even so, I expect that Form 4473 is with us forever, and that we may see additional permissible limits on people with mental health problems buying firearms.

Unfortunately, neither Heller or McDonald stipulated a "level of scrutiny". On the other hand, Heller found that the handgun ban failed any level of scrutiny. That is, it's a no-brainer under any model.

Remember, it takes decades for the legal landscape to settle once a major decision like Heller is handed down. We just won a major victory in the 7th Circuit. If you're feeling a little blue, look up Judge Posner's ruling for some cheer.

sawdeanz

February 11, 2013, 11:35 PM

Denton hit on several points I was thinking of.
I don't believe that heller prevents all bans, but I think it would be easy to argue that semi auto rifles with detachable magazines is a large enough category that it would constitute a class of weapons under commonn use, which is why we need to continue to educate people that ar15s are just that.
If heller did indeed state that the 2nd is a fundamental right, then that automatically calls on the strict scrutiny clause, which is the same level of scrutiny that allows for such broad rights under the 1st to offensive speech etc.

Lastly I wonder whether machine guns weren't initially protected by miller because at the time they weren't such a "common" use type of weapon in the military, i.e. it wasn't the common infantry/militia weapon that it is now.

JohnKSa

February 12, 2013, 01:05 AM

As guns are patented AKA trademarked, and you have paid for them, you MUST be allowed to sell them, or transfer them to your kids. I don't think the government has a legal ground to stand on unless they get rid of consumer protection laws (which is a really scary thought). Basically if you have paid for a product, it's yours and you can do with it whatever you want (to some extent).I don't know what to tell you other than that your theory is total bunk. The law is about a company not being able to prevent you from reselling a copyrighted/trademarked item as part of an end-user license agreement. It has absolutely nothing to do with the government and private gun ownership/resale.Heller does not answer all questions. It does declare that the 2nd is a fundamental right. That's the important part.Right, and it goes further and says that not only is it infringement to ban all firearms, it states clearly that it is also infringing on that right if an entire general class of firearms is banned even if other general classes of firearms are available.

You have to look at the context of the case and the entirety of the opinion. DC was claiming that it wasn't infringing because people could still own long guns and Heller told them that they were infringing by banning an entire general class of firearms that was extremely popular and in common use, i.e. handguns. However, it goes no further than that.

It does NOT say, nor even imply, that it is infringement to ban a subset of firearms. Heller (assuming it is not overturned by a subsequent SC) will prevent the government from banning firearms. It will also prevent them from banning general classes of firearms--i.e. all handguns, or all rifles or all shotguns, but there is nothing in it that prevents the government from banning a subset of a particular subclass of handguns, or a subset of a certain subclass of rifles.Miller is not meaningless. I don't know why you think so.In the context of preventing the ban of military style weapons, it is meaningless. The idea that a law that affirms the right of the citizenry to own militia style weapons and at the same time heavily restricts the exact style of weapons is going to be useful in terms of preventing further heavy restrictions on that style of weapons is not grounded in anything other than wishful thinking.Heller and McDonald, per Miller, cover firearms that are commonly held for lawful purposes.Have you read the opinion for what it actually says?

What was it intended to revoke?
"The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense."
...
"But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.
...
"The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose."
...
"Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,27 banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.
...
"Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid."

It was intended to revoke a "total ban on handgun possession", "the absolute prohibition of handguns" , a ban on "an entire class of firearms", one that is "overwhelmingly chosen", in fact the one that is "the most preferred firearm", "the most popular weapon chosen" in the nation to keep and use for home protection/self-defense.

Does it protect all types of firearms?
"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose:"
No, it does not.

What about bans on military style weapons?
"It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right."
Those are ok and there is no contradiction between such bans and the constitution nor between such bans and the Heller opinion.

Heller was a big step, no doubt, but it will be EXTREMELY hard to convince a court that it will prevent banning, a certain subset of a particular subclass of firearms (e.g. semi-auto handguns which hold more than X rounds, or semi-auto rifles which take detachable magazines).

JohnKSa

February 12, 2013, 01:13 AM

Guess what? It's happened many times in history, and it will happen again here, if we give up our fighting rifles.My point is that we need to treat this like the threat it is and NOT rely on Heller to do more than it can or was intended to do.

If we let the legislatures pass the laws, the courts will not overturn them based on Heller or McDonald, and certainly not on Miller.

I'll say it again, this battle will be won or lost in the legislatures and at the ballot boxes. NOT by wishful thinking. NOT in the courts.

denton

February 12, 2013, 01:37 AM

JohnKSa....

I think you are seriously misreading Heller. Also the chances of it ever being reversed are very, very remote.

I think this is a more correct statement of Scalia's reasoning, and the effects of the ruling:

1. The right to keep and bear arms is a fundamental, protected right.
2. The arms that are protected are all those types of arms that people commonly hold for lawful purposes.
3. Handguns are one subset of "all those types of arms that people commonly hold for lawful purposes".
4. Therefore, an outright ban on handguns is not constitutionally permissible.

Note that you can plug in "rimfire", "centerfire", "semi-automatic" or "revolver" in instead of "handgun" and the logic still works. Any ban on a broad group of firearms that people commonly hold for lawful purposes is not constitutionally permissible. Heller protects AR15s just as much as it protects handguns. And it protects the right to carry guns outside the home. (It says that in the home the need is most acute, i.e. that the need exists elsewhere as well. Posner correctly read that in the recent 7th Circuit ruling striking down laws forbidding the carrying of firearms.)

Yes, we only won Heller by one vote. But we did win.

The courts follow a doctrine called stare decisis, which means that they follow precedent. Once the Supreme Court rules on something, it is extremely difficult to ever get them to reconsider. Even if a decision is widely thought to be wrong, they will not revisit it. The idea is that it is better to endure something that is not quite right than it is to create an uncertain and ever changing legal landscape.

Scalia did an outstanding job on Heller. A lot of people don't like it, but practically nobody is saying that his reasoning was unsound. The chances of SCOTUS ever reconsidering Heller are slim and none, and slim has left the building.

sawdeanz

February 12, 2013, 02:07 AM

Johnksa,

Why do you think that the only classes of firearms are long guns and handguns, it doesn't seem like heller defined that, if anything it seems like that is still open for interpretation, (unless you know this and are simply stating a worse case scenario).

On the other hand I am starting to see how the awb can be considered a limitation that doesn't outright ban all semi auto rifles with detachable magazines (although we know that it practically does).

What I don't get is why the strict scrutiny doesn't get invoked more. The awb should definitely fail this considering it relies heavily on facts, which the antis don't have on theiir side.

I agree that this battle is better fought now at the legislative level, howeverr I personally would like to have as much legal and judiciary support possible going into the debate. I don't think fence sitting congressmen would want to be the ones voting in an unconstitutional law

JohnKSa

February 12, 2013, 02:27 AM

1. The right to keep and bear arms is a fundamental, protected right.
2. The arms that are protected are all those types of arms that people commonly hold for lawful purposes.
3. Handguns are one subset of "all those types <an entire class of arms> that people <most prefer/that are most popular> for lawful purposes".
4. Therefore, an outright ban on <all> handguns is not constitutionally permissible.
I mostly agree. You've taken some liberties with your interpretation based on what you want it to say vs. what it actually says.Note that you can plug in "rimfire", "centerfire", "semi-automatic" or "revolver" in instead of "handgun" and the logic still works.This is where the problem lies.

No, you can not plug in any subclass or subset of subclass of firearms in and still have it work because the ruling and opinion are not nearly so open ended as to leave room for such manipulation.

Did you look at the quotes from the ruling and opinion?

They explicitly rely on an absolute prohibition of an entire class of firearms.

People can read anything they want into it, but if you just read what it says, the wording is quite clear. Just for fun, what specific quotes and passages do you find in the Heller ruling and opinion that support the idea that you can "plug in" any particular subset or subset of subclass of firearm and still support the reasoning based on statements about:

a total ban on possession of handguns
an entire class of “arms”
absolute prohibition of handguns
prohibition of an entire class of “arms”
the most preferred firearm in the nation
complete prohibition of the most popular weapon chosen by Americans for self-defense

Sure, you can pick just one of those quotes/statement/qualifications and maybe weasel word your way around an explanation of how a smaller subset of subclass or subset of subclass of firearms might still fit that single piece of the ruling. The problem is, when the entire ruling and opinion are considered as was written, it's obvious that subclasses of firearms like "rimfires", or "semi-automatics" do not even begin to fit into the overall picture painted by the court opinion.Any ban on a broad group of firearms that people commonly hold for lawful purposes is not constitutionally permissible.That depends heavily on how broad the group of firearms is, and, also based on the opinion, whether or not the banning of that group actually has a significant effect on practical considerations. The opinion, for example, discusses the value of being able to use a handgun with one hand, while using the other for some other critical function. The point is, any handgun provides this capability, whether it holds 6 rounds or 30, and whether it requires the shooter to cock it with a thumb before each shot or not. The courts follow a doctrine called stare decisis, which means that they follow precedent.I understand the principle. In practice, it does offer significant protection against having a ruling overturned, because by its preservation a court essentially strengthens its own rulings. But it does not actually prevent a court from overturning the ruling of a previous court, nor can it provide a guarantee that a ruling will never be overturned by a future court.

I'm not trying to say that it's likely that it will be overturned, my point was to state that even if it never is, it doesn't provide nearly the protection that many people read into it.Why do you think that the only classes of firearms are long guns and handguns, it doesn't seem like heller defined that, if anything it seems like that is still open for interpretation, (unless you know this and are simply stating a worse case scenario).I'm just reading what it says. I'm also not saying that handguns and long guns are the only classes. I think it would be defensible to break them down into three classes: handguns, rifles, and shotguns. It might even be possible to break them down a little farther without making a mockery of the very explicit and clear wording in the ruling. But it's obvious that once you start talking about this subset of that subclass of such and such general class (i.e. Class: Handguns. Subclass: Semi-automatic. Subset of Subclass: Having detachable magazines. Qualification of Subset of Subclass: Magazines that hold more than X rounds) the language of Heller no longer fits....I personally would like to have as much legal and judiciary support possible going into the debate.You say this as if what you or I would like has any bearing on reality. It doesn't. Nor does what you or I would LIKE Heller to say.

It doesn't matter what we would like, it matters what it actually says. I would like Heller to offer a LOT more protection than it does. I just don't see it in there. Sadly, what I would like and how much I would like it, no matter how hard I try, doesn't change what I read.I agree that this battle is better fought now at the legislative level...That's not what I said. What would be better has got nothing to do with the current state of affairs. What is going to happen is what's important, and the sooner everyone understands what the real situation is, what is required and gets to work, the more likely we are to succeed.

shafter

February 12, 2013, 10:38 AM

"they" can and do pretty much anything they want. The federal government ceased to be "Our government" quite a while back and is now "The government" and there's not a lot we can do about it.

Correct. We can make phone calls and write letters until we are blue in the face and it does little to change anything. Look at Obamacare and the opposition to that. Did it go anywhere? Um no. Elected officials are puppets these days and precious few...at least at the federal level have any backbone.

They are little by little making changes that will be impossible to overcome. Once certain classes of people that are currently prohibited from voting are granted that right it's game over. It's already practically game over considering the numbers of "takers' in the system. I hate to be such a pessimist but I forsee nothing but gloom ahead for gun owners.

06

February 12, 2013, 10:53 AM

The "antis" are aiming high as possible hoping that when the dust settles they will have some new restrictions in place. We not only need to stand united but clamor for previous restrictions to be lifted. Turn the "game" plan back onto them.

denton

February 12, 2013, 11:44 AM

JohnKsa...

Well, I can see that my attempts to cheer you up aren't helping much.... :)

The guarantees in the Constitution are not guarantees at all. What they really are are rules that say that if someone decides to defend an action under a guarantee, the odds favor them. Legislatures can and do change the landscape in response to public opinion. The Supreme Court is supposed to be sort of a sea anchor that changes very slowly. When you get a decision from them, it tends to last a very, very long time. That is why those who favor abortion went for Roe v. Wade. There are a lot of people, Justice Scalia included, who think it is bad law. But the chances of getting it overturned are very slim indeed. IMO, Heller is a much stronger decision. Roe v. Wade found an unwritten right in the Constitution. Heller affirmed "black letter" law.

I have read all the quotes you have cited, and much more. I've carefully followed the field, and have read what legal scholars have said about it. I think you are greatly underestimating what we won in Heller. Heller does say that the right to keep and bear arms of the type people commonly hold for lawful purposes is protected. It does not say, as some claim, that the right only applies in the home (see Posner's 7th Circuit ruling). It does not say that it applies only to handguns.

If all arms commonly held for lawful purposes are protected, then all of them are protected, and all of them includes every subset of all them.

Further, all things essential to a protected right are also protected. Under Heller, it is not permissible, for example, to levy a prohibitive tax on ammunition, or to ban magazines that are essential to the proper operation of most firearms. Further, in order to ban certain magazines, the government must show that the class is uniquely destructive or dangerous. They have the burden of showing the need. The right holder does not have the burden of showing their need. That's powerful. In this case, it's probably the winning hand.

So take some comfort in the fact that at least one of us has an optimistic view of what is yet to come as the new legal landscape unfolds over the next couple of decades.

Edited to add this quote from Robert Levy, who was co-counsel to Heller...

With regard to further regulations, the Supreme Court has directed government to certify two essential points: First, the proposals will make us safer. Second, the same ends could not be attained without unduly compromising individual rights that are secured by the Second Amendment. So far, the regulators have not met that burden.

Edited again to add this quote from Randy Barnett, a law professor who was very influential in framing the Heller and McDonald cases....

Some of these measures – for example, laws prohibiting such popular rifles as the AR-15 and the normal capacity magazines for such rifles – are flatly precluded by the Supreme Court’s categorical protection of weapons “in common use” by ordinary citizens for lawful purposes, such as the protection of self and others;

JohnKSa

February 13, 2013, 12:54 AM

If all arms commonly held for lawful purposes are protected, then all of them are protected, and all of them includes every subset of all them.This is correct, logically speaking but only because it is circular. The conclusion is merely a restatement of the conditional.

And, of course, the problem is that NOWHERE in Heller does it say that "all arms commonly held for lawful purposes are protected".

Why do you keep repeating this instead of providing cites from the ruling and opinion that prove you are correct?

Heller prevents banning semi-automatic firearms? DC banned semi-automatic firearms and Heller said not a WORD about that ban being unacceptable.

Furthermore, it's worth pointing out that Heller explicitly allows the state to force licensing and registration on gun owners....laws prohibiting such popular rifles as the AR-15 and the normal capacity magazines for such rifles – are flatly precluded by the Supreme Court’s categorical protection of weapons “in common use” by ordinary citizens for lawful purposes...I don't care who he is, if he claims that there is anything in Heller that clearly prevents or speaks against round count limitations, he's smoking something.

DC had a round count limitation and Heller totally ignored that restriction--never making mention of it at all, certainly not to state that it is unacceptable.

Anyone can say anything they want to, but, to be taken seriously, there need to be cites to back these kinds of claims up.

denton

February 13, 2013, 03:26 AM

I'm really having a hard time cheering you up....

First, I would not lightly dismiss Randy Barnett. He is smart enough to have co-authored an amicus brief in Heller that Scalia partially adopted in finding for the protected individual right. He's one of the most eminent 2A legal scholars in the country. I'm sure his qualifications exceed mine by a great margin.

There is no circularity in what I have stated. Scalia was quite clear in his reasoning:

1. 2A protects an individual right to keep and bear arms.
2. The arms protected are those that people commonly hold for lawful purposes.

He goes on, then, to reason regarding the DC handgun ban. However, that part of the opinion is irrelevant to this discussion. The two points stated are sufficient.

The arms that are protected are those commonly held for lawful purposes, AR15s are commonly held for lawful purposes, therefore AR15s are protected. It's a perfectly simple and straightforward syllogism. All the rest follows from standard rules of interpretation and application.

There was no question before the court on the topic of semiauto firearms. Their protection flows from the two points given above.

Be of good cheer! We may not win them all, but we did win the most important points, and the 20-30 years of litigation that will follow will be decided mostly in our favor.

JohnKSa

February 14, 2013, 12:35 AM

There is no circularity in what I have stated.Circularity is restating the conditional as the conclusion.

Conditional: If all arms commonly held for lawful purposes are protected"
Conclusion: "then all of them are protected, and all of them includes every subset of all them."

For clarity, note that you can restate your premise as follows without changing the meaning at all:

"If all arms commonly held for lawful purposes are protected then all arms commonly held for lawful purposes are protected."

It is a true statement, but it must be true because it does nothing other than say: "If A is true then A must be true."

Unfortunately, nowhere does Heller state that "all arms commonly held for lawful purposes are protected".Scalia was quite clear in his reasoning:

1. 2A protects an individual right to keep and bear arms.
2. The arms protected are those that people commonly hold for lawful purposes.This is correct, however what you are claiming is that he said this:

1. 2A protects an individual right to keep and bear arms.
2. The arms protected are all arms that people commonly hold for lawful purposes."

The ruling is quite clear--it explicitly states that not all weapons are protected.We may not win them all, but we did win the most important points...I have stated that Heller was an important victory. That is true even if one does not overstate what it actually buys us. ...and the 20-30 years of litigation that will follow will be decided mostly in our favor. That depends HEAVILY on the suits that are filed.

denton

February 14, 2013, 12:26 PM

John, John, John....

It has been fun.

But there is no circularity in saying that if a class is protected, all subsets of the class are protected.

You've expressed this thought a few times:

Unfortunately, nowhere does Heller state that "all arms commonly held for lawful purposes are protected".

Try this as a thought experiment: You've been ticketed for running a stop sign. You explain to the judge, "The code says motor vehicles must stop for stop signs. I didn't stop because the code does not say ALL motor vehicles must stop for stop signs". Really, how far do you think that argument would get?

Heller is plain enough. The arms that are protected by 2A are those that are commonly held for lawful purposes. If you have a firearm that is like the ones a lot of people use for lawful purposes, such as hunting, self defense, or target shooting, then your firearm is protected.

So, it has been fun, my friend. I'm afraid I haven't done much to cheer you up. But I have tried.

JohnKSa

February 14, 2013, 11:58 PM

Try this as a thought experiment: You've been ticketed for running a stop sign. You explain to the judge, "The code says motor vehicles must stop for stop signs. I didn't stop because the code does not say ALL motor vehicles must stop for stop signs". Really, how far do you think that argument would get?It could get pretty far if the law explicitly stated that not all motor vehicles must stop but didn't clearly define which ones must and which ones didn't have to.

The Heller decision/opinion clearly states that not all weapons are protected and therefore the thought experiment misses the mark.Heller is plain enough.That's the one thing we both agree on...

denton

February 15, 2013, 01:41 AM

It could get pretty far if the law explicitly stated that not all motor vehicles must stop but didn't clearly define which ones must and which ones didn't have to.

But that is quite different from the thought experiment proposed.

The Heller decision/opinion clearly states that not all weapons are protected

Yes it does. And what does it say about firearms that are not protected? It says that "dangerous and unusual" firearms are not covered. That's the nearly opposite of "commonly held for lawful purposes". So if you want to know if your firearm is protected or not, you have to figure out which class it fits in.

Frank Ettin

February 15, 2013, 03:32 PM

The first-sale doctrine plays an important role in copyright and trademark law by limiting certain rights of a copyright or trademark owner. The doctrine enables the distribution chain of copyrighted products, library lending, gifting, video rentals and secondary markets for copyrighted works (for example, enabling individuals to sell their legally purchased books or CDs to others). In trademark law, this same doctrine enables reselling of trademarked products after the trademark holder put the products on the market. The doctrine is also referred to as the "right of first sale," "first sale rule," or "exhaustion rule."

As guns are patented AKA trademarked, and you have paid for them, you MUST be allowed to sell them, or transfer them to your kids. I don't think the government has a legal ground to stand on unless they get rid of consumer protection laws (which is a really scary thought). Basically if you have paid for a product, it's yours and you can do with it whatever you want (to some extent).Good God! You have no idea what you're talking about. You are completely wrong.

The "first sale rule" is a matter of intellectual property/trademark law. It only protects the private reseller against a copyright/trademark infringement claim by the copyright/trademark owner.

Yes, I'm a lawyer. You, obviously, are not.

alan

February 15, 2013, 05:38 PM

Anti gun types in elective office will pass bans on anything that they can, and devil take the hindmost, they being the law abiding citizenry, who will then have to foot the significant bill for court challenges.

When if ever, aside from the possibility of being unelected, have politicians ever been punished for enacting stupid, unconstitutional legislation?

JohnKSa

February 16, 2013, 12:50 AM

And what does it say about firearms that are not protected? It says that "dangerous and unusual" firearms are not covered.Heller gives more than one example of weapons and behaviors involving weapons that are not protected. To be absolutely accurate, it does NOT say that "dangerous and unusual firearms" are not protected, it says that "prohibiting the carrying of dangerous and unusual weapons." is allowed by the constitution.

Furthermore, there is nothing in the paragraph in question that states, or even suggests that it is intended to provide an exhaustive list of behaviors or types of weapons that are not protected. It merely provides some limited examples.

Hypnogator

February 16, 2013, 12:58 AM

Miller's ruling (as bizarre as it was) did allow for banning MG's, which the Hughes act eventually finished off.

No...

Miller upheld the licensing (not banning) of short-barreled shotguns because the Court was not presented with evidence that such weapons were used by the military. They could figuratively whistle past the graveyard and ignore the use of trench guns in WWI.:uhoh:

Machine guns would have been an entirely different matter, and they could not have ignored the use of the machine gun by the military. :what::eek::neener::neener::neener:

denton

February 16, 2013, 12:23 PM

Heller gives more than one example of weapons and behaviors involving weapons that are not protected.

A bit of a subtle diversion of the topic on your part, here. I don't think I have mentioned behaviors. That is a an issue separate from covered vs. not covered firearms.

it says that "prohibiting the carrying of dangerous and unusual weapons." is allowed by the constitution.

And exactly how is saying that dangerous and unusual weapons can be prohibited different from saying that they are not part of a protected class that cannot be prohibited?

Furthermore, there is nothing in the paragraph in question that states, or even suggests that it is intended to provide an exhaustive list of behaviors or types of weapons that are not protected. It merely provides some limited examples.

True. And irrelevant. SCOTUS set forth the general principles and left the details for subsequent cases, as they usually do. In deciding a case, they do not address questions that are not needed to decide the issue before them. Generating the list was not necessary in order to decide Heller or McDonald.

danez71

February 16, 2013, 12:28 PM

John, I see your angles and see at least some validity to them as I have thought about some of the same things you have brought up.

Where I get stuck is when 'context' is considered. You have repeatedly mentioned 'context' as well as repeatedly brought up 'what the actual wording says'.

Those two things can and do conflict.

In justifying your belief, you cant say "Well, in the context of the decision, they were referring to is ..." and also say "What the actual words say is ...."

That is where I get stuck myself.... remember, I said I see some validity to your side.

As an exaggerated example:

What you have laid out is that they cant ban a class of weapon but can potentially ban a sub class. You have even mentioned '6 or 10 rounds' and 'semiauto with detachable mags' as hypothetical examples.

That slippery slope leads to them being able to ban everything but single shot black powder weapons which I think has been pretty cleary adressed with the 'legal and common' lingo in both actual words and context form and also from past decisions.

The fact that a 'class' of weapon wasnt defined could eventually lead to that. A class could be as broad as 'any hand gun' or as narrow as 'centerfire semiauto hand guns with detachable mags that can be changed with-out a tool' (referring to bullet buttons).

If you use 'context' as part of deciphering what the ruling means, you have to also apply it to the whole ruling, including the common/legal part.

To what extent.... I dont know. I'm not a SC justice.

However, when I try to reason out the actual words and apply context to it, What I see is that the SC said 'the genie is out of the bottle' with their use of the common/legal wording.

How much genie is protected by the Constitution hasnt been decided.

What I also see is that by using the 'common/legal' wording is that the SC left the door open to the govt passing laws that prevent the genie from getting more powerful.

In other words, pasing laws that essentially prevent firearms developing past the point they are now. IE: No guns can be allow to shoot a round that is more powerful than what is availible now. No gun can be developed that can pass through a metal detector. etc etc

JohnKSa

February 16, 2013, 04:20 PM

A bit of a subtle diversion of the topic on your part, here. I don't think I have mentioned behaviors.Perhaps you didn't intend to, but the quote you used from Heller regarding "dangerous and unusual" was actually a quote about the prohibition of CARRY of "dangerous and unusual weapons", not simply about the prohibition of the weapons themselves.And exactly how is saying that dangerous and unusual weapons can be prohibited different from saying that they are not part of a protected class that cannot be prohibited?Your initial claim was that dangerous and unusual weapons were the entire class of prohibited weapons. Heller doesn't say that for two reasons.

1. It doesn't explicitly say that dangerous and unusual weapons are prohibited, it says that laws "prohibiting the carrying of dangerous and unusual weapons." are allowed.

2. It provides other weapons and behavior that may be restricted without violating the constitution--which indicates that dangerous an unusual weapons are not the entire class of weapons which can be prohibited and carrying is not the only behavior which can be prohibited.And irrelevant. SCOTUS set forth the general principles and left the details for subsequent cases, as they usually do. In deciding a case, they do not address questions that are not needed to decide the issue before them.It is CRITICALLY relevant.

Heller may eventually lead to rulings that protect the guns that you say are protected, but as you correctly note, Heller itself does NOT provide either an explicit list of weapons that may be prohibited, nor more than a very general idea of which weapons are protected.In justifying your belief, you cant say "Well, in the context of the decision, they were referring to is ..." and also say "What the actual words say is ...."Sure you can, in fact, that is precisely how one extracts meaning from the written or spoken word. One must look at both what is said and the context of the statement.You have even mentioned '6 or 10 rounds' and 'semiauto with detachable mags' as hypothetical examples.Based on the fact that DC, at the time had those types of restrictions and Heller neither invalidated those restrictions nor even mentioned them at all as being unconstitutional.How much genie is protected by the Constitution hasnt been decided.I agree whole-heartedly.What I also see is that by using the 'common/legal' wording is that the SC left the door open to the govt passing laws that prevent the genie from getting more powerful. I don't have any problem believing that Heller states that the guns that are protected are in common/legal use, because that's what Heller states.

What it doesn't state is that ALL guns that are in common/legal use are protected.

In other words, for a gun to be protected, it must be a type that is in common/legal use, but the fact that a gun is in common/legal use does not automatically mean it is protected.

From a more formal standpoint, "in common/legal use" is clearly a necessary condition for protection, per Heller, but nowhere does Heller state that it is also a sufficient condition for protection.

sawdeanz

February 16, 2013, 05:39 PM

I don't have any problem believing that Heller states that the guns that are protected are in common/legal use, because that's what Heller states.

What it doesn't state is that ALL guns that are in common/legal use are protected.

In other words, for a gun to be protected, it must be a type that is in common/legal use, but the fact that a gun is in common/legal use does not automatically mean it is protected.

I think I now see where you have been going this whole thread, now stated much more plainly.

However I disagree with
I don't care who he is, if he claims that there is anything in Heller that clearly prevents or speaks against round count limitations, he's smoking something.

DC had a round count limitation and Heller totally ignored that restriction--never making mention of it at all, certainly not to state that it is unacceptable.

As other people have pointed out, SCOTUS stays pretty specific to the case. The fact that they didn't address the round count or other aspects doesn't mean they passively support those measures as constitutional, it just means that it wasn't brought up in that particular case.

However in preparing for that future and inevitable legal battle, we need to remind people that detachable magazines of 30 rounds are standard and part of the weapon. Without a detachable magazine the rifle is no longer an Ar-15, and since AR-15's are common weapons used for lawful purposes than so are their corresponding 20/30 round magazines. And we also have to remind the legislators and courts that the onus of proof is on them. They have to provide the evidence that banning magazines and assault weapons will not only make us safer but that it will not be a burden on lawful citizens. I don't think the antis will be able to provide that proof granted we manage to get the appropriate case to the Supreme Court. (although I don't see universal background checks as failing that test).

danez71

February 16, 2013, 06:39 PM

What it doesn't state is that ALL guns that are in common/legal use are protected.

Nor does it say SOME guns are protected either.

Given that the Constitution is written in such a way that it limits the Govt from prohibiting/infringing on RKBA, Speech, Religion, equal rights, etc, it seems to me that the SC Justices would rule in such a way as well.

Applying it, since they didnt use a limiting word such as "some", it defaults to "all".

But again, I'm not a SC Justice and I surly see your side as I agree somewhat.

Serious Question: Were there any kind of hand gun or rifle variances during the time the Constitution was written? For Ex. Were there different ignition systems like flint lock vs cap and ball or were there any types of revolvers back then.

Reason I ask, if there were, and the Founders made no distinction back then, then any current interpretation shouldnt make a distinction either.... or I should say, at least Scalia probably wouldnt.

JohnKSa

February 16, 2013, 08:46 PM

As other people have pointed out, SCOTUS stays pretty specific to the case. The fact that they didn't address the round count or other aspects doesn't mean they passively support those measures as constitutional, it just means that it wasn't brought up in that particular case.That's true as far as the official ruling itself is concerned. However, the opinion is a lot more free form and they can discuss anything they want. In fact, although registration wasn't part of the case or ruling, they did mention it in the opinion portion. The fact that neither the semi-automatic ban nor the round count limitation in place at the time weren't mentioned AT ALL, in my opinion, is significant.Given that the Constitution is written in such a way that it limits the Govt from prohibiting/infringing on RKBA, Speech, Religion, equal rights, etc, it seems to me that the SC Justices would rule in such a way as well.There's some merit in this view, however an SC ruling and opinion is only required to clarify things that aren't clear or to make specific things that are general. Given that fact, I think it's a mistake to read specificity into a ruling and opinion when it clearly isn't there already.

Furthermore, the ruling goes out of its way to make it clear that not all weapons and behaviors are protected and also avoids adding the simple word "all" to the clause "weapons commonly held for lawful purposes". Adding words to simple and clear clauses, or creating specificity where none exists is a very poor recipe for determining the intent of the authors and the meaning of the document.

Frank Ettin

February 16, 2013, 10:47 PM

...Nor does it say SOME guns are protected either....Many folks are over thinking this and trying to read too much into the "guns in common use" references, and other dicta, in Heller.

"Dicta" is material not necessary to the resolution of the matter before the Court. And it can relate to matters not briefed or argued or raised by the core facts of the case. The Court may suggest how it is disposed to look at certain related subjects, but unless and until we get a case before the Court that squarely involves the right question, we're largely speculating.

...an SC ruling and opinion is only required to clarify things that aren't clear or to make specific things that are general. Given that fact, I think it's a mistake to read specificity into a ruling and opinion when it clearly isn't there already...Yes.

joeschmoe

February 16, 2013, 10:56 PM

Many people also read way too much into what is not addressed in Heller. Since everything else was not at issue in Heller it not surprising the court did not comment on them.
It is not supposed to answer all question on the subject, nor should you assume anything on things they did not say.

danez71

February 17, 2013, 02:06 PM

Thanks John and Frank.

As I mentioned, I agree with much or most of what you've both said.

I tend to debate 'the other side' with myself trying to find the alternate arguements.

Ultimately, some time down the road, I think it will boil down to performace features and not cosmetic features as cosmetic feature will be able to shown that they do little to nothing to help the Govt acheive its goal of 'saving our children' and there are other ways to help acheive it with less infringement.

Those decisions as to whats acceptable or not will most likely be made in the voting booth as I dont think the SC wil ever get specific enough to spell it out.

Meaning... people need to stop relying on the 2A to allow them to keep their ARs with 10+ round mags.

We need to have logical reasons why they are OK and convince the majority of the voting public that we are right.

We need the majority on our side.

I think too many people forget the the Constitution can be changed with enough votes. We literally are able to vote our selves to a dictatorship.

joeschmoe

February 17, 2013, 03:42 PM

I think too many people forget the the Constitution can be changed with enough votes. We literally are able to vote our selves to a dictatorship.
(short thread dirft)
No. Not the way our system works. We are not a pure democracy where the people can vote for anything. We are a Republic = a representitive democracy where the power is reserved by the people. Our representitives have limits on what they can do. They cannot vote themselves new powers or take away the rights of the people. This is an intentional restriction built into the system to prevent the majority from opressing the minority. Aka = mob rule.
This is why I have repeatedly said the government does not have the power to ban/confiscate arms or enforce a UBC. They simply lack the power to do so.
Simply rewriting the law, or even the Constitution, to allow it cannot make it so.

denton

February 17, 2013, 08:37 PM

Separating what the Supreme Court has actually ruled from the dicta is often confusing. I profess no special talent at it. However, when the text of the ruling switches from talking about history or legal definitions to "we find that..." or "we rule that..." or "we read our prior ruling to mean...", I think the writer is speaking as the voice of the court and is articulating a binding decision.

If that understanding is correct, then this passage is dicta (dictum since there is just one?):

By the time of the founding, the right to have arms had become fundamental for English subjects.

While these passages are binding:

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.

We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

Taken together, plus McDonald, I think that there is a binding ruling that protects every kind of firearm except those not typically possessed by law-abiding citizens for lawful purposes. Restrictions on that right must meet the tests of being clearly beneficial to society and of being narrowly tailored.

These two passages find a broad right. Once that was established, it was fairly easy for them to find that DC's handgun ban violated the right.

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